Striking Syria for using chemical weapons: legality, morality, reality 

The debate goes on: was it legal for the United States, the United Kingdom, and France to strike Syria for using chemical weapons against armed “rebels” and unarmed civilians?

Image result for syria chemical weaponsThere seems to be sufficient evidence that Syrian government-backed forces used chemical weapons. It is not the first time, nor probably the last. Russia – whether it accepts it or not – bears responsibility for the use of what appears to be chlorine gas by the Bashar Al-Assad regime. No stranger to using chemical or biological weapons on its own nationals (albeit only sparingly and clandestinely, at least in the UK), Russia is giving aid and comfort to Assad in his use of chemical weapons. How else does one explain Russia’s involvement in blocking the Organization for the Prohibition of Chemical Weapons (OPCW) inspectors in having access to the areas and victims in question? Though Russia and Syria are claiming that this is all fake news, the direct and circumstantial evidence shows otherwise. But that is beside the point – at least for this post. I am willing to suspend belief and give the benefit of the doubt to the Russian and Syrian version of what happened in Douma until more proof is forthcoming.

My interest in this topic has more to do with the ongoing debate: whether – assuming chemical weapons were used – international law permits a state or a group of states (a coalition of the willing – as the concept has come to be known) to strike the offending state absent the United Nations’ (UN) approval?

Scholars, politicians, diplomats, military analysts, and legal experts are all over the place in answering this basic question — which, by now, one would expect to be a rather settled matter not up for equivocation and obfuscation. Obviously not.

Take your pick. Some say there is a duty to protect innocent civilians from such ghastly unlawful chemical attacks, so yes, striking Syria is legal. Some argue that it is perfectly acceptable to engage in limited retaliatory strikes to send a message – though there is nothing ever referenced in support of this supposed legal principle of sending a message. Some argue that occasionally it is perfectly legal to give the offending side a bloody nose – an argument most recently advocated by former US National Security Advisor, H. R. McMaster as a justification of a limited strike against North Korea should it get near the point of no return in its development of nuclear weapons. Presumably, the bloody nose is to be considered a warning that there is more to come if there is a failure to cease and desist from the offending conduct. Funny, here too we find no credible legal authority supporting the bloody nose doctrine, not to mention that there is no evidence to suggest that this strategy (if you could call it that) would not result in a response requiring an escalation in hostilities.

Some argue that as a matter of morality (or humanity) there is a need to act – that legality must either give way to morality, or that where there is a need to act out of morality, necessary and reasonable actions bear the imprimatur of legality. A stretch, but then to these folks, the ends justify the means depending on the circumstances, i.e., when it suits their desired (and presumptuously virtuous) goal.

Some are steadfast purists, arguing that there is no room to act outside the strict norms set out by the UN Charter – however moral or noble the cause. As praiseworthy as this seems, it fails to account for the analysis-paralysis of the UN, the dysfunctionality of the UN Security Council (UNSC), and the disparate interests among states in solving conflicts. Mind you, even when action is needed, and perhaps more than permissible, states are likely to put their finger in the air to see which way the wind is blowing before committing.

And then there are those in between who find a way to carve out exceptions and conceptualize instances when, even if there is purposeful inaction by the UNSC, a legal justification can be made if the fancy to strike is there – as in the case of the NATO bombings in Kosovo.1   See Sir Daniel Bethlehem, Stepping Back a Moment—The Legal Basis in Favour of a Principle of Humanitarian Intervention, Blog of the European Journal of International law, EJIL: TALK! 12 September 2013.

nothing is pure, absolute, or ideal

The strict legality camp may have it right even if it is seemingly naïve to be oblivious to the dictates of raw pragmatism, since nothing is pure, absolute, or ideal. Being a strict constructionist (a by-the-letter-and-sprit-of-the-law clinical applicant of what is as opposed to what should be the law irrespective the consequences) reflects legalism – but what of realism? Politicians and diplomats deal with reality as it comes their way, in all its inconvenient, messy, and ugly forms. Unlike academics and scholars, decision-makers are less tolerant of the constraints placed upon them by the pure (if there is such a thing) application of the law – a luxury best afforded to starry-eyed idealists who wax on about the majesty of the law as if its application is impervious to realities which call for bold, innovative, and out-of-the-box thinking. And herein lies the rub.

Expedient as it may be to brush aside the strict application of law, or to look for clever ways to claim legitimacy to illegitimate or questionably legitimate acts for the sake of morality (i.e., humanitarian purposes), there is a price to pay. As the saying goes, what goes around comes around. Sooner or later, other states will apply similar spurious reasoning for claiming legality or legitimacy to acts that are clearly not. This slippery slope tends to be ignored or lost in the scrum, as states feel compelled to act swiftly and decisively, even, as in the case of Syria, if military actions (air strikes) are effectively symbolic – not to mention even questionable under their respective constitutional constraints when acts of war are carried out absent legislative consultation and consent. An aside we need not concern ourselves here.

The recent air strikes by the US, UK, and France were for all intents and purposes symbolic.  Maybe that is what President Trump had in mind when he borrowed from the unfortunate George W. Bush banner: mission accomplished. That is, the symbolic strike succeeded in its intended (though unexpressed) purpose of being symbolic. Message sent, sans bloody nose: chemical weapons are not to be used – not so much because of the consequences on the poor Syrian civilians, but because we cannot abide the potential usage of chemical weapons in our own back yard. Cynical as it may sound, it is hard not to draw this conclusion when you look at what has been going on in and around Syria for the past seven years.

Think about the reaction to the use of chemical weapons in Syria which over the years has claimed the lives of about 2000 – if the reporting is accurate. Not exactly an inconsequential number, especially when you factor in the slow, painful, and abhorrent death these chemical attacks rendered. But compare this number with the half of million victims since the bloody civil war began. Death is death. Most, if not all, of the victims were in utter terror before being killed by snipers, stay bullets, rocket grenades, air raids, and so on, as they huddled in their homes or would-be shelters, or as they vainly tried to escape. And what of the number of critically and permanently wounded, of the dispossessed who have risked life and limb to make it to some promised land only to find out that they are as unwelcome as they are despised. When you tally up the numbers of dead and wounded and dispossessed by “conventional” weapons, one would expect, at a minimum, an equal amount of outrage for them as supposedly is being shown for the victims of chemical weapons. Why so little outrage over these victims? Where is the coalition of the willing? Why are there not sustained airstrikes to bring this humanitarian crisis to an end?

Other than the occasional vacuous condemnation, no such outrage is expressed as we see and hear when CNN, BBC, or Al Jazeera bring us live coverage of the victims of chemical attacks. No calls to action such as the rhetoric we heard from Nikki Haley, US Ambassador to the UN, who on occasion trumps Trump with her silver-tonged expressions such as the US is locked and loaded to strike again, delivered in her rhythmic – though slightly exaggerated affectation – Southern drawl.

Why has the international community not drawn a red line? Or maybe they have done just that, and we are missing the obvious. There are players on the Syrian side that may feel compelled to engage any state with force – a risk that could quickly get out of control. So, the modus vivendi is to tacitly agree to certain rules of the road: what each side will tolerate in acting and reacting – rhetoric for public consumption aside.

Russia is not about to get dragged into the conflict beyond its perceived national interests by three permanent members of the UNSC who feel the need (for whatever reason) to send a few rockets at some empty sites (thank you President Trump for telegraphing us about what was coming, you know, so we could get the hell out of the way) as a means of reigning in Assad and his cronies who just don’t get it that sleeping dogs will only lie so long as chemical weapons are not used.  Bombing the population to an oblivion is tolerated, so why up the ante by using chemical weapons just to speed up the inevitable results? Dense as Assad may be, he is Russia’s poodle for the moment. So, as long as any attack does not destabilize the Syrian regime (Assad may be expendable but continuity of the regime is vital), Russia is perfectly content for the West to get in a few licks when Assad gets out of line and uses chemical weapons. Even a bloody nose may be tolerated – but all in moderation, please!

So, what is the point?

If striking Syria is not legal even if moral, and if there is this urge to do something (if for no other reason than because it feels right and good), then why not kick it up a notch or two? Why stop with bombing some abandoned sites or a couple of airfields that are back up and running in less than 48 hours? Why not hit military barracks, supply lines, electrical grids, all vital airfields, or even the Presidential palace and all the places Assad and his top echelon are likely occupying? If you are not going to take out the Assad regime, get him on his knees so he would at least contemplate cutting his losses or risk meeting the same fate as Iraq’s Saddam Hussain and Libya’s Muammar Gaddafi.

Radical as this sounds, why is it any different than striking Syria to send a message or to give Assad a bloody nose? If it does not matter whether it is legal to strike Syria, then why should it matter striking Syria for the sake of taking out Assad?

Oh, but it does matter. It is not about legality or morality. It is about reality. Look at Iraq after Hussain and Libya after Gaddafi. Not exactly bastions of liberal democracy. In fact, a credible argument can be made that for all its imperfections, both Iraq and Libya were far better off under Hussain and Gaddafi than they are today without them. In hindsight, maybe they were not as recalcitrant as they appeared. Maybe sustained constructive engagement with Hussain and Gaddafi might have worked (look no further than the recent developments with North Korea’s Kim Jong-un).

Syria without Assad will assuredly be more unstable than it is with Assad. Reality in its cruelest form. That is why the threshold for tolerance of Syrian victims is so high – so long, of course, as the means used in victimizing the victims are conventional and not chemical weapons.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “Striking Syria for using chemical weapons: legality, morality, reality ”

  1. Dear Mr. karnavas:
    Thank you for sharing your thoughts.
    First of all, it was not yet established who used chemical weapons. This is a paramount issue for Jihadist groups also used chemical weapons in the past.
    No matter how cruel chemical weapons are. Up till now around 400.000 persons have died in Syria and most of them were civilians with many children among them. Most fell under gun fire or artillery shells. Some were bombed from the air. The agony of an adult or child smashed by an explosion or bled to death is as terrible as to die by inhaling gas.
    Certainly the United Nations (UN) cannot do much because of the Russian Veto, but that was precisely the idea of the diplomats who created the UN, i.e. an International Organization where the status of the victors of WWII would be guaranteed by the power of veto allowed to the five Permanent Members of the Security Council. The UN has no independent will and thus the interest of the superpower can not be affected by the resolutions of the Security Council. It may looks unfair but it is necessary to keep everybody on board. The United States, Britain and France benefited from this priviledge on many occasions as well.
    Acording to the International Law, all foreign interventions in Syria outside those of Russia, Lebanon (the Hezbollah group) and Iran are illegal since these are allies to the legitimate government of Syria and were asked to intervene. All the other countries that participate in the war were not invited and thus their presence is illegal as well as any bombing raid. No matter how unsymphatetic Assad´s allies can be. Their presence in Syria is legal. But they are also bound by the rules of International Humanitarian Law, including those related to war crimes.
    The Right of Humanitarian Intervention or the Obligation to Protect as it was called several years ago is still a contested position in International Law and a dangerous one. Though Scholars, the Media and the general public would like to think that a Humanitarian Intervention is very much like the adventures of medieval knight that rescues a princess from the cave of a dragon, the reality is much more grim. There were no military humanitarian interventions in History that also or above everything else did not have other national or personal non humanitarian interests as well. As a short list of examples let`s think of Abhazia, South Ossetia, Moldavia, Ukraine, Kosovo, Bosnia-Herzegovina, Rwanda (the French intervention to save the Hutus), Mali and so on.
    The unfortunate fact is that societies produce their leaders and since most of the world do not care about human rights these leaders are usually ruthless.
    A military humanitarian intervention or a substantial air campaign can be counterproductive in the Syrian war since it may produce a regional war that could also trigger a world war. In addition it will produce the death of more Syrian children.
    Claudio G. Morassutti

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